Thank you for asking me to join you this evening. It is a particular privilege to be asked to give this inaugural Law and Politics lecture. I need only look to one of the leading silks in my chambers Keith Morton QC to see the merits of reading law at this university. And long before you became the city of culture, I have been an occasional visitor, as my wife’s family originate wholly from the East Riding and my late father in law was brought up here.
In deciding what topic to choose for this evening’s talk I have to say that I had some hesitation. My life over the last few months has been dominated like most politicians by Brexit. There is certainly nothing settled about it and its final form and consequences are wholly unclear. Whatever the outcome it has contributed to an unparalleled political and constitutional crisis for our country. So the temptation was there to concentrate on it this evening particularly as it has earned me, as a past Attorney General, some surprising epithets ranging from “mutineer” to “bespectacled Che Guevara”.
But I am conscious that Brexit is only the most dramatic twist in a debate about the form of our country’s governance and future which has developed so markedly in recent years. As we look around the legal and political scene, we can also see unresolved issues relating to devolution which have the capacity to threaten the break up of the United Kingdom. And we have the continuing tensions between the idea of a British state adherent to, and compliant with, norms of behaviour enshrined in international treaties and principles of parliamentary sovereignty and concerns that traditional structures of governance are being eroded by judicial activism.
All these topics are linked. But I cannot hope to do justice to them all, so I have chosen this evening to concentrate on the last of these which centres on the future for human rights law in our country. It’s most persistent recent manifestation has been over whether or not we should replace the Human Rights Act and replace it with some form of British Bill of Rights. This is a subject on which I have to emphasise that I can’t make claim to have complete objectivity because, as I was once informed by a helpful press statement, put out by the number 10 Downing Street press office, it was the reason for the ending of my Ministerial career as Attorney General. But I think that the most interesting facet of the issue is that it has now been under discussion in political circles for over twelve years and nothing has as yet happened. The new Prime Minister is of course on record as saying during the EU referendum that pulling out of the ECHR was more important than leaving the EU; but she has since indicated that the Government will not pursue this. Yet from time to time we hear whispers to the contrary. Her first Lord Chancellor, Liz Truss, stated repeatedly that getting rid of the HRA remained a top priority for the government. What was completely unclear is what purpose might be served in doing this if the compatibility of our laws with the ECHR was to be retained. Since then matters on the HRA have gone rather quiet, but the issue of the future of rights conferred by the Charter of Fundamental rights of the EU has become controversial as the EU Withdrawal Bill has made its way through Parliament.
So I thought I would return to this topic again, not for some academic legal discourse but from a politician’s perspective. I would like to examine why this issue jangles around so noisily and sustainedly. I also want to consider whether there is any prospect of a constructive outcome to this debate.
But first I think we need to look at how we have got to where we are.
The ECHR and our country’s adherence to it has long been the subject of political polemic. It is curious that it should be so, because its origins undoubtedly reflect British constitutional traditions of freedom and the Rule of Law that are generally accepted in our country as the foundations on which good government should be conducted. It is suffused with principles that can be traced back to Magna Carta, Habeas Corpus and the Bill of Rights of 1689. The ten key rights originally protected by the Convention were, with the exception of Article 8 on privacy and family life, a classic exposition of the liberties which successive generations of British politicians and the public routinely claim as our shared inheritance. It fits with a national narrative that can be seen as early as Chief Justice Fortescue’s celebration of English medieval exceptionalism in “de Laudibus Legum Angliae” of 1453. There the use of torture is deprecated and trial by jury and due process praised for its uniqueness to England. He said that “he would rather twenty evil doers to escape death through pitie, than have one man unjustly condemned”. There is even an excellent section in it on government by decree which might have been profitably considered by those who vilified the judiciary over the judgment in the Miller case over who had the right to authorise the triggering of Article 50. “The King of England” he said “cannot alter nor change the laws of his realm at his pleasure”.
And of course to this we can add the Case of Proclamations of 1610, the Petition of Right of 1628; Lord Mansfield’s ruling on slavery in Somerset’s case and the commentaries of William Blackstone.
But for all that, when the Convention was being promoted by a Conservative lawyer politician, Sir David Maxwell Fyfe, in the late 1940s, adherence to it was controversial. The Convention was seeking to give concrete expression to the UN Charter, itself promoted by Eleanor Roosevelt as the Magna Carta of the 20th century. But there was anxiety about the UK being fettered by an international legal obligation that was in the last resort to be interpreted by an international tribunal. There was also tension between the UK preference for a detailed list of clearly defined rights and that of the French and some other nations for a general list of principles derived from the more abstract ideas set out in the Declaration des Droits de l’Homme et du Citoyen. Contemporary FCO advice to Ministers showed characteristic caution about all this. It said: “To allow governments to become the object of such potentially vague charges by individuals is to invite Communists, crooks and cranks of every type to bring actions.”
It is doubtless true that most Britons in 1950 considered that our Common Law and unwritten constitution upheld by a democratic Parliament offered a better level of protection for freedom than any continental model. So, in signing up to the Convention, we were doing something new. We were intent, through the creation of rights which we ourselves believed we already enjoyed as liberties, not so much on protecting ourselves, but on setting a standard of behaviour for other states towards their citizens that could be universally applied. We were the first country to ratify the Convention in 1951 and Lord McNair, a British legal scholar of renown, became the first President of the Court of Human Rights in 1959. Most importantly we then came through another debate on the Convention in the mid 1960s when we recognised the right of individual petition. Interestingly the principle advocate for this in Parliament was Terence Higgins, a right of centre Conservative MP, who wanted it as a check on curbs on freedom that a Labour government might be minded to introduce. This more than anything else provided the the conditions which transformed the Strasbourg Court from an international tribunal intended to deal with a limited number of cases into the institution it is today. It also made apparent the need to incorporate the ECHR, in some way, into our own domestic law to allow the rights to be claimed here.
As you will know, in the run up to the enactment of the Human Rights Act there was much discussion as to whether or not a home grown Bill of Rights might be better than direct incorporation of the Convention into our law. That idea foundered because there was no agreed view as to what the scope of such a Bill of Rights should be. Some wanted socio-economic rights so they could be enforced through the courts. Others, including the few Conservative lawyers who got involved, wanted to protect core liberties over and above those covered by the Convention, such as for example the right to trial by jury in England and Wales.
But the principal problem was that any discussion rapidly hit the barrier touching on the fundamental doctrine of Parliamentary sovereignty. For a Bill of Rights to have a powerful effect domestically it would have to include some form of judicial override of subsequent legislation that was incompatible with it. The then Conservative government of John Major found these issues far too divisive to get involved. When Labour won in 1997 it proceeded on a deliberately minimalist approach with very little consultation. Parliamentary sovereignty was respected by Section 2 of the HRA. No attempt was made to add other rights. The only glosses in respect of freedom of expression and freedom to manifest one’s beliefs have proved to be essentially declaratory. And after enactment of the HRA, it is noteworthy that the then Labour government did very little to promote the concept of Human Rights with any distinct national narrative. Indeed, within a few years it was advocating restrictions on traditional rights, such as derogation from the Convention for the imposition of detention without trial and, subsequently, 90 and 42 day pre-charge detention which ran entirely counter to them.
So I don’t think we should be surprised that, the main promoters of the HRA having become so ambivalent as to its principles, those who worried about its impact in empowering individuals considered “underserving” by the tabloid Press to bring claims, should have been left unchallenged in their belief that the HRA was unacceptable. Although at the Third Reading of the Human Rights Bill in 1998 my friend and colleague the late Nicholas Lyell QC, who was then Shadow Attorney General, was able to persuade William Hague that its principles and intention were sound and it should not be opposed, by 2006, when David Cameron became Leader of the Opposition, the Conservative position was entirely changed. Michael Howard, seared by his experiences with the Strasbourg Court when he was Home Secretary in deportation and extradition cases such as Chahal, was hostile to the HRA, which he considered an excessive fetter on executive discretion. The new leader had been Howard’s Special Adviser and had witnessed these problems. Furthermore, News International, with which he wished to build a relationship in order to win an election, was implacably opposed to the progressive development of privacy law which was one of the consequences of the Human Rights Act and was leading a campaign against the HRA and the ECHR.
This was the genesis of Cameron’s speech to the Centre for Policy Studies in 2007 which committed the Conservative Party to repealing the Act. In it he stated that there would be a British Bill of Rights to replace the HRA and that it’s wording and consequential interpretation by our own national courts would be sufficiently different for it to enable the United Kingdom to exploit to the maximum the “margin of appreciation” allowed for by the Strasbourg Court in the interpretation of the Convention by member states. This approach was based on the principle of “subsidiarity” in the Convention that recognises the right of signatory states to interpret and apply the Convention with differences reflective of national traditions. This, David Cameron believed, would help the UK to prevent the Convention being used to create rights here unintended by its creators. As I was Shadow Attorney General and then Shadow Home Secretary and Shadow Justice Secretary in the period up to the 2010 election, I was tasked with producing a paper on how this could be done and set up a small commission of Conservative and other lawyers to help me. My one insistence was that the end product must be compatible with our continued adherence to the Convention. When we produced a position paper in late 2009 for David Cameron highlighting the difficulties involved with the proposal and the very limited changes that could be achieved, it was put in a bottom drawer and the work was not pursued. But this did not prevent the Conservative Manifesto of 2010 repeating the promise.
Under the Coalition Government, no changes could be made without the agreement of the Liberal Democrats. So the Government set up another commission under Sir Leigh Lewis to inquire fully into the matter. Its report is excellent reading for academics but came to no conclusion. It did set out the complete rejection of change by all the devolved administrations in response to its consultation and the variance of views between the Commission’s members on what a Bill of Rights might contain. It may have been frustration at this lack of progress which prompted David Cameron to consider a far more radical solution of crafting a Bill of Rights free of the need for compatibility with the ECHR and it was this idea that resulted in the Conservative Party paper of October 2014, which formed the basis of the Conservative Party manifesto of 2015.
The 2014 Paper
In the paper, the intention behind the Convention was lauded. But while it was described as “an entirely sensible statement of the principles which should underpin any democratic nation” and it was acknowledged that the UK had a key role in its drafting, it then accused the Strasbourg Court of mission creep and outlined a programme of fundamental change, advocating the repeal of the HRA and its replacement by a new Bill of Rights which would clarify rights, particularly those under Articles 3 and 8, to prevent their alleged abuse in respect of deportation, by changing the tests to be applied. There was a desire to confine the right to invoke a breach of the Convention to “cases that involve criminal law and the liberty of the individual and other serious matters”, with Parliament setting a threshold below which no Convention rights would be enforceable. It wanted to limit the the reach of human rights cases to the territory of the UK, removing all activities of the armed forces overseas from its scope. It also advocated breaking the link between British courts and the Strasbourg Court so that no account need be taken of that court’s rulings and further demanded a special status for the UK, where Strasbourg judgments were merely advisory and threatened leaving the Convention entirely if this could not be achieved. This would then leave us with a domestic Bill of Rights which would have the Convention text glossed to remove the areas of irritation identified and which would then be interpreted solely by our own courts, subject, as is the HRA itself to Parliamentary supremacy in respect of primary legislation.
The authority of the paper was not helped by a series of assertions which are manifestly erroneous. Thus, complaint was made in it that the Strasbourg Court has ruled in the case of Dickson v UK 44362/04 2007 that the UK government should allow more prisoners to go through artificial insemination with their partners in order to uphold their rights under Article 8. But this sidestepped the fact that this was already allowed on grounds of maintaining family relationships before the ruling and that the ruling did not confer an absolute right to this service at all with the Justice Secretary considering each case on its merits. As of 2017, it had led to only two applications being allowed.
Another example, is the allegation that the Strasbourg Court had made the imposition of Whole Life Tariffs for murder impossible because, in its judgment in Vinter v UK 66069/09, it has insisted that there had to be some possibility of review of such sentences to ensure compliance with Article 3 of the Convention on inhuman treatment. Yet, as had been made clear by the case of R v McLoughlin  EWCA Crim18, such a review mechanism has always existed and has to be operated compatibly with Convention rights, thus making the Vinter case hypothetical and of no practical effect.
The paper was also short on detail. It indicated, for example, that a foreign national who “takes the life of another person” would be excluded from invoking Article 8 altogether so as to be able to remain in this country. But what “taking a life” meant was not specified. It was unclear if it covered just murder or included manslaughter and causing death by dangerous or even careless driving which might properly not even attract a custodial sentence. It was also unclear if it was intended to include minors. The possibilities of this leading to grave injustice were ignored.
When published, it was announced that the paper would be followed by a draft bill. But this never happened. The paper’s poor reception was consistent, I subsequently discovered, with private opinion polling for the Conservatives, which showed that the desire for a Bill of Rights and repealing the HRA was not in the top ten priorities of the electorate and was only supported by 16% of those polled. So it was relegated to deep inside the 2015 Manifesto. It re-emerged as a continuing commitment after the Conservative victory in May 2015 but with the new Lord Chancellor, Michael Gove, hinting that leaving the Convention was not desired and might not be necessary, although without explaining at all how this could be reconciled with the thrust of the pre-election paper. A draft bill for consultation was then promised for the autumn 2015, but the date kept on slipping. The next news was that the matter had been transferred from the Ministry of Justice to the Cabinet Office and it was hinted that the Bill of Rights was now being looked at in the context of not only dealing with the HRA but also as a way to assert parliamentary sovereignty against decisions of the European Court of Justice in Luxembourg and enable adverse judgments of that Court to be ignored, notwithstanding the EU treaty requirements of giving ‘Direct Effect” to its ECJ decisions. This development culminated, just before the EU Referendum campaign started, in stories of an imminent announcement of proposals that were designed to keep Boris Johnson in the Remain camp. When he went for Leave, the whole thing was dropped but the principle of some change remains even if we are none the wiser as to what the Government wants.
Why the Government is wrong in its approach
In my view the reason why the Government has found it so difficult to carry forward its project is that its desire for a measure to appease a small section of the public and the media and rid itself of an occasional administrative irritant keeps on coming up against the reality of the benefits given to our citizens both from the ECHR and it’s incorporation into our law through the HRA.
If we leave the Convention we would be spurning the reasons why we signed up in the first place. Notwithstanding our pride in our sovereignty, it has been the intention and policy of successive UK governments over the last two centuries to seek to make the World a better and more predictable place by encouraging the creation of international agreements governing the behaviour of States. We have records of over 13,000 treaties that the UK has signed and ratified since 1834, ranging from the UN Charter to bilateral fishing agreements. Over 700 contain references to binding dispute settlement arrangements in the event of disagreement over interpretation as does the Convention. And, increasingly, these treaties such as the UN Convention on the Prohibition of Torture or the creation of the International Criminal Court deal with a state’s conduct towards those subject to its power. This has become so important that the Ministerial Code, until 2015, made specific reference to the duty of UK ministers to respect our international treaty obligations. This was then deleted in a fit of pique by David Cameron, at being too frequently reminded of this point. But the deletion does not remove the obligation, as the Cabinet Office has conceded. It is part of Lord Bingham’s eighth principle of the Rule of Law. The original decision to sign the Convention and keep adhering to it thereafter is because it was and remains in our national self interest to promote the Convention’s values to our co-signatories and others. This is something the UK is recognised as doing rather well.
A moment’s examination also shows that the impact of the Convention has been favourable for the development of the Rule of Law and principles of justice in our country. Over the years it has produced a number of landmark decisions which have challenged and halted practises which were once considered acceptable in Western democracies but which would now be seen as unacceptable by the vast majority of the public. In Marckx v Belgium in 1979 6383/74 it ended state discrimination against children on the grounds of illegitimacy. In Dudgeon v UK 7525/76, the criminalisation of homosexual acts in private in Northern Ireland was held in breach of the Convention, a decision with a beneficial impact far more important elsewhere than in our own country. In Rantsev v Russia 25965/04 people trafficking was held to fall within the definition of slavery in Article 4 and a positive obligation placed on states to halt it.
One of the grounds advanced for our uncoupling ourselves from the Convention is the complaint that the Strasbourg Court has interpreted the Convention as a “living instrument” in a manner that undermines the intention of its signatories. Taken to its logical conclusion, this argument would mean that the court remained fixed in the moral and ethical standards of 1950. On that basis none of the cases I have just cited would ever have been decided in the way they were. There is, in any case, nothing unusual in judicial interpretation based on current values. It is rooted in our own Common Law tradition as Baroness Hale has pointed out when she said “….it is in a comparatively rare case that an Act of Parliament has to be construed and applied exactly as it would have been applied when it was first passed.” Thus in 2001, a “member of the family”, first used in 1920, could be applied to a same sex partner.
It would, of course, be possible, whether or not we left the Convention, to legislate to prevent our substitute Bill of Rights, unlike the HRA, being subject to such interpretation. But this would be an extreme form of parliamentary and political micro-management. And if we were still wishing to be adherent to the Convention, it would raise the risk of there being more instances where decisions of our own courts conflicted with those of the Strasbourg Court. One suggestion made by the Government is that the read down provisions of Section 3 of the HRA should be removed. Such a move would lead to more declarations of incompatibility, clogging up the legislative timetable of Parliament, unless it is just the cue for the Government to ignore such judgements.
That suggestion also fails to take into account the value of the cross fertilisation between our courts and the Strasbourg Court. Strasbourg jurisprudence has been influenced by our own. We have recent examples. In Al Khawaja v UK26766/05 in 2009, the Court moved from a condemnation by a chamber of the Court of our rules on hearsay, to the acceptance of the decision of our Supreme Court, when the Grand Chamber revisited the case, following the rejection of its previous judgment by the Supreme Court in Horncastle. We have also been the beneficiaries of the Strasbourg Court’s ruling in S and Marper 30562/04 in 2009, that the blanket retention of DNA, practised in England and Wales (the only jurisdiction in Europe to do this) was in breach of the right to a private life. Our own House of Lords had earlier held this policy compatible with Convention rights. Yet I have never heard a complaint since about the Strasbourg Court decision which led to a change in our law.
This isn’t to say that all is perfect. The confrontation that developed between the Strasbourg Court and Parliament over the case of Hirst 2005 740/01 on prisoner voting is a good illustration. In itself the issue was largely symbolic and of little practical consequence. But symbols can matter in a parliamentary democracy and the judgement was in my opinion an unnecessary interference with a reasonable policy supported by Parliament and public. Senior members of our judiciary have expressed concern that the Court has been failing at times to respect national differences of interpretation which should be allowed under the Convention and has been failing to appreciate the practical limits of its authority in giving judgments which contradict settled democratic will.
But Hirst was thirteen years ago. The past excessive micro manipulation of the Convention by the Court, faced by an understandable desire to protect human rights in countries with poor records has in recent years shown signs of modification. The Brighton Declaration of 2012, negotiated by Ken Clarke when Justice Secretary and myself, has helped the efficiency of the Court and reduced its backlog of cases. It also started a constructive judicial dialogue between national courts and the Strasbourg Court. Horncastle was an illustration of this. Another example is the Animal Defenders case, where the Court deferred to our courts and legislature in accepting our ban on political advertising. At present 99% of cases brought against the UK in Strasbourg are struck out as inadmissible. When a Lord Chancellor of a little flexibility came to office in the person of David Lidington, he has had little difficulty altering the prison rules in a minor way to bring the UK into compatibility with the Hirst judgment.
Constitutionally, leaving the Convention or placing ourselves in deliberate incompatibility with it, would call into question the Devolution settlements to Scotland, Wales and Northern Ireland which are underpinned by Convention rights accessible through the HRA which the devolved administrations must observe. The Westminster Parliament could legislate to change that, but we know this would be against the wishes of all devolved governments and they will argue that the UK Government will be breaching both the Sewel Convention and the latest devolution statutes if it does so. In the case of Northern Ireland it would also breach the terms of the Belfast Agreement which is an international treaty with the Irish Government. To get round this it has been suggested that the Bill of Rights should contain the text of the Convention, which would meet the requirement of the Belfast Agreement, but then have the controversial Articles such as 3 and 8 glossed by means of sub clauses so that they will be interpreted thereafter in the way the Government thinks they should be. A moment’s thought must cast doubt both on the feasibility and effectiveness of such a measure.
Finally in this critique, the Government underestimates the positive impact that the Convention has had on improving the Rule of Law in places where it has never previously existed and also appears oblivious of the destructive impact which our non adherence to its principles will have on its wider effectiveness.
Just to take one example of a country with a difficult human rights record illustrates this. Turkey generated between 1959 and 2011 over 2400 adverse judgements. It was responsible for 43% of all cases that came before the Court alleging violations of Article 10 on freedom of expression. The judgements cover cases ranging from the action of the security forces against the PKK, demands for wearing headscarves at universities, the right to criticise prison conditions, the expropriation of Greek Cypriot property in northern Cyprus, conscientious objection to military service and the banning of a political party.
And, despite the challenges, we can see the same thing in other countries with records, such as Russia, where the Convention is routinely invoked to challenge rights violations by public authorities including beatings up and torture by the police and, similarly, in Romania and the Ukraine. Even countries with better records have benefitted. I have not heard the UK government criticise the Strasbourg Court for its decisions in Vallianatos v Greece 201429381/09 and Oliari v Italy 201518766/11, where both governments were held in breach of Articles 8 and 14 in not including same sex couples in their new civil union laws.
It is suggested at times that the ECHR lacks value because so many of its judgments are not being implemented. The backlog does indeed stand at about 7,584 cases and some countries with long histories of rights violations, such as Turkey, Russia, Ukraine and Romania are principal offenders. But despite long delays, compliance is usually in the end achieved, but this is of course entirely due to peer group pressure exercised through the Council of Europe. Our threats to withdraw or to ignore the Convention are not helpful in this respect and this has an impact beyond Convention state members in their attitude to human rights obligations. Russia has invoked our attitude to the ECHR to justify non implementation. In contrast our willingness to follow the ECHR judgements scrupulously in the case of the deportation of Abu Qatada to Jordan, helped ensure reforms to the Jordanian criminal justice system which were both needed and welcomed.
All this highlights for me the irrationality of the Government’s stance. Obviously, if the Government chose to take us out of the Convention entirely, then it would be open to it to put together a Bill of Rights which could give us rights substantially different, and probably inferior, to those that the Convention currently gives us. Such a change would come at a great price to our international standing and our ability to pursue our aim of improving human rights on our planet, quite apart from its effect domestically. If, alternatively, we are intent on fiddling with the HRA to try to reduce the impact of Strasbourg Court jurisprudence, whilst maintaining our adherence to the Convention, the likely outcome is going to be minimal. We have already addressed some issues with no change to the HRA at all, as we can see with the tests on balancing the right to a private life with public safety in section of the Immigration Act 2015 and the possibility of future permissible derogation from the Convention to cover battlefield detention overseas by British Forces. Trying to go further and manipulate the Convention through a British Bill of Rights will not work. The benefits are illusory and I suspect this is why this project never gets anywhere.
The Impact of Brexit
There is now however, an additional problem in relation to the impact that Brexit is likely to make on human rights law.
EU law, in the way it has developed, has influenced rights. As the product of an international treaty, the EU can only be legitimate if its own operations respect the Treaties that created it. Furthermore the nature of the project has produced the requirement not only for there to be the supremacy of EU law over the national law of member states in areas of EU competence, but also the creation of parts of that law by its central bodies. It is obvious that such a source of law can operate abusively whatever the intention of its creators might be. They clearly wished that EU law should further principles of democracy and the rule of law and values found in the constitutional traditions common to it’s member states, including the principles reflected in the ECHR and other treaties on social and economic rights to which all members are signatories. These general principles are now embodied in the Charter of Fundamental Rights of the EU, which also covers the obligations of member states in respect of the “Four Freedoms” conferred on EU citizens in the Treaties.
These general principles and the Charter have been the driver in recent years in promoting the development of equality law and social rights. For example it is due to EU law that there are rights to protection against discrimination at work on grounds of sexual orientation, religion and age. The Equality Act 2010 may be a piece of parliamentary legislation that would have been supported nationally in any event, but it owes it’s origin to changes brought about be EU law. In the recent Supreme Court decision of Walker v Innospec, Mr Walker relied on a Framework Directive, interpreted in line with general principles of EU law of non discrimination to dis-apply a provision of national law which restricted the extent to which same sex spouses could receive pension payments from pensions earned by their deceased spouse.
Another area of importance is privacy law. Article 8 of the Charter protects personal data and in the David Davis and Tom Watson challenge to the Data Retention and Investigatory Powers Act 2014, the Court of Appeal agreed with the Divisional Court that Article 8 of the Charter was more specific than Article 8 of the ECHR. My own opinion that the final decision in this case was seriously deficient in its factual reasoning does not diminish the importance of the right. In Google v Vidal Hall a directive was interpreted in line with the Charter and the ECHR so as to require the payment of compensation for breaches of privacy, even when those breaches could not be shown to have given rise to pecuniary harm. As UK legislation implementing the Directive could not be interpreted in line with it, the provision restricting compensation to pecuniary loss was disapplied.
Finally in this brief survey, I can’t overlook the recent decision in Benkharbouche in the Supreme Court. It held unanimously that two provisions of the State Immunity Act 1978 were incompatible with Article 6 of the ECHR, as they went beyond what was required to give state immunity under customary international law. Ms Benkharbouche’s claim under employment laws ought therefore to proceed. But the outcome rested on the ability to disapply the legislation immediately because it breaches Article 47 of the Charter. Otherwise the court was left with only being able to make a declaration of incompatibility.
It is noteworthy that all these developments in rights law have attracted very little adverse comment from the public. So much so indeed, that the Government has been at some pains to emphasise that in leaving the EU, it is not its intention to diminish any of these rights currently enjoyed by UK nationals through the acquis.
The problem however is that the approach of the Government as set out in the EU Withdrawal Bill suggests something different. The bill proposes to take snapshot of EU law, as it stands on exit day, and import it into our law. But at the same time it is going to exclude the Charter of Fundamental Rights from this importation and allow the Charter and general principles of EU law only to be referred to thereafter as an aid to interpretation of retained EU law. There will therefore be no right of action in domestic law for any failure to comply with a general principle of EU law. So the kind of legal developments I have cited will not be possible in future. Nor will these areas of social and equality rights enjoy any protection thereafter unless they come under the ECHR. Ministers have justified this on the basis that it would be wrong, as we are leaving the EU, to allow any element of judicial supremacy inherent in the way EU law has operated to survive as it offends the parliamentary sovereignty we are supposed to have lost and been restoring. The alternative of allowing our own Supreme Court to fulfil this role, at least until we have replaced retained EU Law with domestic law, has been dismissed. It will be interesting to see how the House of Lords approaches this issue as it considers amendments to the EU Withdrawal Bill. The Government has so far only indicated a willingness to make minimal concessions on this issue.
I accept, of course that there are some who take the view that at most, the only human rights that should be protected are those in the ECHR. They can point to there being an important jurisprudential distinction to be drawn between liberties and rights. As a Conservative I have always been cautious about the desirability of widening the scope of fundamental rights and some social rights involve a difficult and not readily justiciable balance between competing policy areas. They ought to remain in the realms of politics not law. But that said, there has grown up in the last half century areas of law around equality and privacy that are not well covered by the ECHR and are now seen as fundamental rights by an overwhelming section of the public. I don’t think this can simply be ignored. Yet this seems at present to be the government’s intention.
An Alternative Approach
This suggests to me that while we may be leaving the EU, the debate around how we best protect rights has still a long way to go.
But I don’t want to conclude this evening on a note of pessimism. While I have spent some time this evening criticising the present Government’s ideas for a Bill of Rights to replace the HRA, I do think that such a statute could offer one possible solution to protect rights in future. But for this to work, we will need to get away from trying to use a Bill of Rights as a device to dilute the working of the ECHR. It would have to be compatible with it. That could then enable us to protect rights and liberties on which the Convention is silent, as first suggested in the 1990s. It could provide the place to set out the key principles needed to best regulate areas of devolved governance which, we have seen recently, are a growing source of disagreement in our country, with the Government embarking on a challenge to the Scottish Parliament’s most recent Brexit related legislation as being outside its competence. As and when we leave the EU it could enable us to consider and protect the rights currently coming from the EU that we might wish to retain, in a manner which is compatible with the sovereignty of Parliament.
If we want to avoid a detailed written constitution, the Bill of Rights could also include in it, updated, those clauses of the Bill of Rights of 1689 and the Parliament Acts that underpin our parliamentary democracy. It could help set clearer boundaries between the role of the judiciary and that of the UK Parliament. Those boundaries are likely to offer better protection from supra-national courts such as the Strasbourg Court and, for as long as we remain, the European Court of Justice than we have at the moment. These courts have shown high levels of deference to well formulated, democratically approved constitutions or basic laws.
The continuing debate on the role of the HRA and of human rights generally, stems in large part from the uncertain and changing boundary between parliamentary sovereignty, executive discretion and judicial intervention. All these reflect developments in our traditional constitutional order that politicians find uncomfortable to acknowledge. So, instead, I encounter too many colleagues trying to turn back the clock and reassert a rose tinted and mythologised version of Parliamentary supremacy. But this will fail, as the complexity of current power structures, and indeed our society, makes it impossible to achieve. It would be better to accept these changes and move forward. A Bill of Rights, based on our traditions of democracy, the Rule of Law and a shared allegiance to constitutional monarchy, offers an opportunity of bringing and keeping us all together through periods of great change, if we keep in mind the principles that have served us so well, so far in our common history. But that is a very different thing from playing fast and loose with international legal obligations.
Dominic Grieve QC MP